Guerra v. Pena, 14545
| Decision Date | 23 September 1966 |
| Docket Number | No. 14545,14545 |
| Citation | 406 S.W.2d 769 |
| Parties | Virgilio H. GUERRA et al., Appellants, v. Amando PENA et al., Appellees. . San Antonio |
| Court | Texas Court of Appeals |
Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for appellants.
Luther E. Jones, Jr., Corpus Christi, Frank R. Nye, Jr., Emilio F. Gutierrez, Glenn H. Ramey, Rio Grande City, for appellees.
This is an election contest filed by appellants, Virgilio H. Guerra and Horacio Vela, contesting the results of the 1966 Starr County Democratic Primary for nomination to the officers of County Commissioner, Precinct 2, and Justice of the Peace, Precinct 2, respectively. Appellees, Amando Pena and Mrs. Minerva R. Pena, were certified to be the successful nominees for these respective offices by the Starr County Democratic Executive Committee.
The two contests were apparently brought and tried as one suit because both contestants are members of the 'Old Party' whereas contestees are members of the 'New Party' in Starr County, and since the boundaries of the two offices are similar most of the challenged votes affect both candidates of each 'party' in similar fashion. A substantial number of ballots, most of which were voted absentee, were challenged in the trial court by contestants and contestees. After a lengthy hearing, the trial court made findings relative to 158 ballots, resulting in the following final recount, and judgment was entered declaring that both contestees were duly nominated:
Votes
Votes Counted rejected
Election by Election by Election
Officials' Officials but Officials but
Returns Per Miscounts declared declared Result
Election corrected by illegal by valid by in Trial
Officials Trial Court Trial Court Trial Court Court
-------------------------------------------------------------------------------
County
Commissioner
------------
Contestant
Guerra 760 k12 -7 k18 783
Contestee
A. Pena 821 -22 -5 k23 817
Justice of
the Peace
------------
Contestant
Vela 749 k14 -7 k18 774
Contestee
M. Pena 808 -8 -5 k22 817
It is seen that to prevail on this appeal it is necessary that contestant Guerra change the findings of the trial court to a net of 35 votes, whereas contestant Vela must change the findings to a net of 44 votes. Contestants' appeal relates to a total of approximately 125 ballots, although several are challenged for more than one reason. By counter-points, contestees complain of the trial court's findings as to 13 ballots.
Contestants urge that the trial court erred in not voiding 69 absentee ballots which were allegedly secured by applications based upon medical certificate signed by Dr. Rene A. Solis, although none of such certificates had been requested by the voter or by any one at his direction. There is no contention that any of the persons were not actually disabled, and the uncontradicted evidence shows that a medical examination was made by Dr. Solis before he signed each cerftificate. Contestants assert, however, that there is no evidence, or insufficient, evidence of a request for a certificate in the manner required by law. 1
The only testimony on this point came from Dr. Solis, who has been Starr County Sheriff for 18 years and, although obviously a leader in the 'New Party,' was called by contestants as a witness. Dr. Solis testified that he signed medical certificates for 'many absentee voters' between April 19 and May 2, 1966. Although Dr. Solis had a notebook which contained, in chronological order, the names and summary of each person examined, the notebook was not offered in evidence and only three persons were identified as having been examined by Dr. Solis. Contestants urge that the identity of the other 66 voters may be ascertained by an examination of the applications contained in the absentee ballot boxes.
The trial court refused to make this examination and it is our opinion that an abuse of discretion is not shown by this refusal, in that contestants did not make out a prima facie case of illegality as to these voters to justify the trial court's examination of these ballots. Art. 13.30, Election Code, Vernon's Ann.Civ.St.; McIver v. Starkey, Tex.Civ.App., 271 S.W.2d 314, no writ; De La Garza v. Salinas, Tex.Civ.App., 255 S.W.2d 396, no writ; Markowsky v. Newman, Tex.Civ.App., 138 S.W.2d 896, wr. dism. The voting lists show that an absentee vote was cast by a person of a name identical to each of the challenged voters. However, contestants failed to show that these challenged voters secured their ballots by medical certificates furnished by Dr. Solis.
A more difficult question is presented as to the ballots of Ascencio Canales, Nicholas Escobar and Blasa R. Salinas, in that the testimony of Dr. Solis shows that he issued a medical certificate for each. Dr. Solis testified that 'the certificates' and therefore presumably 'these' certificates were signed at the place of examination, which was usually at the voter's home, and that the request for the examination was made by a 'party' representative who accompanied him when the examinations were made. There was no evidence from any of the voters, or the 'party representative' as to whether the voter directed the representative to arrange for the examination.
The contestants had the burden of introducing evidence that these voters did not direct the 'party representative' to request Dr. Solis to make the examinations. This Court has repeatedly held that in an election contest, the contestant has the heavy burden of overcoming the presumption that the election officials discharged their duty properly in receiving or rejecting a ballot. Guerra v. Ramirez, Tex.Civ.App., 364 S.W.2d 720, wr. dism.; Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272; Solis v. Martinez, Tex.Civ.App., 264 S .W.2d 956, wr. dism.
Contestants urge that they discharged their burden under the holding in McGee v. Grissom, Tex.Civ.App., 360 S.W.2d 893, no wr. hist. The question of who has the burden of going forward with the evidence is not considered in this opinion. The appellate court there upheld the trial court's ruling in voiding 21 absentee ballots which were obtained, completed and delivered fraudulently. The evidence showed that the applications with blank medical certificates attached were delivered by the contestant and his wife to an elderly retired physician who was not the family physician of any of the voters and further did not have personal knowledge of the physical condition of any of said voters.
The facts which supported the finding in the McGee case that the medical certificate was obtained fraudulently are distinguishable from the uncontradicted evidence in this case, in that Dr. Solis examined each of the voters before signing the medical certificate and each was in fact entitled to vote absentee for this reason. Further, there was evidence that Dr. Solis had examined these persons for the purpose of their securing medical certificates at many prior elections. In our opinion, the trial court did not abuse its discretion in refusing to examine the certificates and ballots of these voters.
Contestants urge that four voters, including the three identified as having been given a medical certificate by Dr. Solis, were continuously unconscious or insane and therefore their ballots should be voided. Two of the four had died before the trial. The evidence was sharply conflicting as to the mental and physical disabilities of these four voters. They were found qualified by the election officials and there is sufficient evidence to support the trial court's finding that none were shown to have been mentally disqualified from voting.
Contestants urge that two procedural errors affected the case as a whole by denying them due process, and specifically affected a number of voters who cast ballots for contestants which were rejected by the election officials. Shortly after contestees filed their answer in this cause, contestants served contestees with a request for admissions in accordance with Rule 169, Texas Rules of Civil Procedure, and with notice of intention of taking the deposition by written interrogatories of 32 witnesses whose ballots had been rejected. Prior to the expiration of the time for reply to these requests and for issuance of the commissions, contestees filed motions with the trial court seeking to be excused from answering a number of the requests for admissions and also seeking to enjoin the issuance of the commission for the depositions, unless a 'time and place' for the taking of such depositions were stated. Both of these motions were substantially granted.
The request for admissions contained 23 requests with several containing many subsections. The first twelve requests relate to formal or jurisdictional requirements of this suit; i.e., precinct boundaries, the certified election results, and identity of the parties. All but two of these requests were admitted by contestees. The remaining eleven relate to the specific grounds for challenging the action of the election officials; i.e., questions were asked relative to each of the persons listed in the various exhibits attached to contestants' petition and contestees were asked to admit that they were non-residents or residents, according to how the result would affect contestants, the specific grounds for rejection by the election officials of numerous ballots and similar matters which went to the merits of the lawsuit. The trial court found that the information requested was subject...
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